R v Williams HC Auckland CRI 2007-044-003059

[2008] NZHC 2427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-044-003059

THE QUEEN

v

EDWARD JOHN KINGSLEY WILLIAMS

Hearing:         29 July 2008

Appearances: J G Donkin for Crown

R M Mansfield for Prisoner

Judgment:      29 July 2008

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V WILLIAMS HC AK CRI 2007-044-003059  29 July 2008

[1]      Edward Williams, you appear for sentence for two offences, to which you pleaded on arraignment just as your trial was scheduled to begin but before the jury was empanelled: supply, between 18 December 2006 – 2 May 2007, of the class A controlled drug methamphetamine, and possessing that drug on 2 May 2007 for the purpose of sale or supply.

[2]      On 2 May 2007 the police executed a search warrant at your home. They found in your fridge a container in which was 12 grams of methamphetamine. Also in another container four point bags containing 3.1 grams of methamphetamine cut with glucose. You then stated, speaking of the former, that it was pure methamphetamine for your own use. It had cost you, you said, $4,000.

[3]      Also found at your address was a container of glucose, a number of self sealing plastic bags, a number of small sets of electric scales,  a  flat  glass  tray containing traces of methamphetamine and a 2007 diary. The scales and the self sealing plastic bags you explain as an ordinary part of your business, not carrying any more sinister connotation. The diary is, however, important and you do not deny what it said.

[4]      It contained names, quantities and amounts owing between 18 December

2006 - 4 April 2007. It showed that you had supplied 43.45 grams of methamphetamine, ranging in quantity from .25 – 3.5 grams, to at least ten persons, at an average price per  gram of $643. Translated to a total, whether as  a sum received or a debt, that approaches $28,000.

Pre-sentence reports

[5]      I  have  two  pre-sentence  reports  relating  to  you,  the  first  of  which recommends that you be sentenced to imprisonment because of the seriousness of your offending and the level of sentence it attracts.

[6]      It says that you were introduced to methamphetamine four  years ago by friends at a gym. Your use quickly escalated to dependency. Your relations with your friends and your increasing dependency went hand in hand. That ceased when

you were arrested. You are highly motivated to change. You impressed, your first report says, as unaware originally of the gravity of your offending and your counsel has explained that you saw yourself as exchanging drugs amongst friends recreationally. You seemed, the report says, genuinely out of place in the prison setting.

[7]      Home detention was not then canvassed because of the level of sentence usually imposed and because no request had been made, so it was assumed, for a home detention assessment. In that latter respect your initial report was incorrect. On arraignment the Judge who convicted you directed that your report canvass home detention, if only to allow your counsel to advance that on sentence, and a supplementary report has since been prepared.

[8]      That report recommends by way of alternative that you be sentenced to home detention, the intent being that you live with your partner at her mother’s house, an alternative completely acceptable to both. All three of you work together in your partner’s mother’s business, grooming dogs, and in your case, especially, giving injured dogs hydrotherapy.

[9]      Your  mother’s  partner  speaks  very highly of  you,  of the  skill  you  have acquired, of the energy you have displayed and of the care you have shown to injured dogs. Customers and friends have also written letters of high praise. I have no hesitation in accepting what they say. But, you will understand, ultimately I must sentence you for the offences for which you appear.

Purposes and principles

[10]     In sentencing you for these offences I must hold you accountable, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in  this  way,  protect  the community and  provide  for  the  interests  of  any conceivable victim. You should be aware that even in this category of case there can be victims, though not always instantly readily identifiable. I must also, so far as it is compatible, assist you in your rehabilitation and reintegration into the community.

[11]     In this I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with like cases, the need to impose a sentence near the maximum, should that be warranted. Equally, I must take into account the contrasting purposes: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper  sentence  disproportionately severe,  and  the  need  to  recognise  you  as  an individual and in your context.

[12]     In the balance to be struck between those purposes and principles, which can be in tension, it has often been said that drug offending of the order for which you appear allows little room for personal circumstances to assume any priority. There is a presumption in favour of imprisonment as a matter of law.

[13]     Recently and exceptionally, however, as R v Hill CA 559/07, 29 February

2008 has allowed for, offending deserving imprisonment can occasionally, and I must emphasise occasionally, result in a sentence of home detention. That is the course your counsel urges first and foremost today.

Supply offence

[14]     Counsel are agreed that your principal offence, the supply offence extending over 12 months, lies within band two, R v Fatu [2006] 2 NZLR 72, CA. That is a wide band where the quantity for supply lies between 5 and 250 grams and attracts a starting point for sentence in the range three – nine years imprisonment. The Crown contends for a starting point of five – five and a half years imprisonment. Your counsel urges a lesser starting point, four – five years imprisonment.

[15]     In a case close to yours, on which the Crown relies, R v Holloway (HC AK, CRI 2005-090-7291, 26 May 2006), Williams J took a five – five and a half years starting point. In R v Sturge (CRI 2006-088-001575, HC WHA, 29 June 2006), again a not dissimilar case, Lang J took a six year starting point. Less serious cases than yours have attracted starting points above three years. Harrison J took a starting point of three years, three months where the amount of methamphetamine discovered with other suggestive items was 15.4 grams: R v Tarawa (HC ROT, CRI 2005-087-1265,

12 December 2005). Allan J took three years, nine months where 13.4 grams was found in an equally suggestive context: R v Wallace (HC HAM CRI 2006-019-

10117, 29 August 2007).

[16]     Your counsel seeks to distinguish you from those cases on the basis that you dealt in cut methamphetamine and they dealt with pure methamphetamine. He was not categorical and on my rapid survey of those cases that is not completely correct. A number contained cut methamphetamine, certainly one did. But you were found in possession of a significant quantity of pure methamphetamine, 12 grams, and while your tick book may record cut quantities, you were obtaining $643 per gram, at least in arm’s length transactions not with your partner.

[17]     That translates, if all the transactions recorded are treated literally, to a yield of $28,000. I do not take that figure literally. But it must also be said that, if one takes account of what was found and what you had disposed of, something approaching 58 grams of methamphetamine had, or could have, passed through your hands. That is not inconsiderable.

Conclusions

[18]     I consider, therefore, that for the supply offence a starting point of no less than five years must be adopted. Anything else would be inconsistent with the cases to which I have referred. The possession for supply offence must attract a concurrent starting point.

[19]     You have no aggravating previous convictions and you are entitled to a credit for plea. Your counsel goes so far as to suggest that you might be given a maximum one-third credit. But that is given when a plea is entered at the very first opportunity. You entered your plea on the point of trial and strictly that calls for a relatively slight credit. I am prepared, however, to allow you the credit normally allowed where a plea is entered significantly before trial but after depositions, which is a 25 percent credit.

[20]     The result is that, taking into account other things that have been said in your favour, I consider that a sentence of four years imprisonment is warranted for your two offences. It is against that background that I must consider the sentence your counsel urges in its place, relying on the Hill principle, a sentence of home detention.

[21]     Because your offending preceded October 2007 Hill supplies you with this advantage certainly. There is jurisdiction to impose home detention on you, even although  the  sentence  that  I  think  proper  sits  well  above  a  short  term  of imprisonment; the only basis for a sentence of home detention for offending after October 2007. But, as even Hill illustrates, home detention is reserved for the less serious cases of supply; those at the margin between personal use, and sharing with friends, and some profit.

[22]     Your offending, for the reasons that I have just described, is commercial offending, whether or not you thought it was at the time you undertook it. You may have supplied to friends, but to your friends these transactions must have seemed as commercial as any other. So I do not consider that the Hill principle assists you eventually.

[23]     I have said to you that a sentence of four years imprisonment is warranted, but I add this rider. You have attempted recently to halt a dependency that clearly took charge of your life. You have not gone the distance yet of receiving the help that you need. Even as late as May you still thought you could do it by yourself. That is not so. But, to encourage you, and without wishing to be inconsistent with the sentences  imposed  that  I have  spoken  of,  I will  reduce  your  sentence  for  both

offences to three years, nine months imprisonment.

P.J. Keane J